The Equal Employment Opportunity Commission is suing two companies— BMW and Dollar General— alleging that their use of criminal background checks for employees violated the Civil Rights Act. Are criminal background checks, honestly, worth a shit?
The EEOC's issue is not with the use of background checks, per se, but with the fact that background checks can tend to become a proxy for racial discrimination. In This Great Nation of America, black people are incarcerated at six times the rate of white people, and, thanks to our commitment to Winning The War on Drugs, entire generations of black Americans have criminal records. It is rather asinine to purposely exclude people with criminal records from all future stable employment, thereby ensuring that they are forced to turn to crime. Of course, during a time of high unemployment, companies might choose to do just that, under the theory that they have a large labor pool to choose from and little to lose. So it is heartening to know that the EEOC's guidelines on this topic are so stringent. From the WSJ:
People convicted of crimes don't get special protections under civil-rights laws, but the EEOC can sue if it believes information about prior convictions is being used to discriminate against a racial or ethnic group.
The legality of a screening test is "going to depend on what they're doing for you and what the nature of the conviction was," said Ronald S. Cooper, a former general counsel of the EEOC who is now a partner at Steptoe & Johnson LLP. "It's a hard standard to meet and the EEOC means it to be."
Both of the companies now being sued had racial disparities in their dismissal rates of employees due to background checks. Statistics show that Dollar General and BMW were both more likely to fire black workers than non-black workers.
It is not that hard to devise a set of common sense rules about criminal background checks and employment. You don't want child molesters working with children, or credit card scammers becoming bank tellers. But is there any reason on earth why someone who once sold weed can't work at Dollar General, or why a person who made one mistake in their past shouldn't be able to work in a factory? That is insane. It is untenable for society as a whole to deny convicts employment. And, considering the sorry state of our justice system, it is unfair to assume that a criminal record is a reliable indicator of moral character.